Five commenters commented that the definitions of producer and 
secondary producer would encompass on-line distributors of pornography 
who digitize the covers of videos, DVDs, and magazines but are not 
involved in the actual production of the material. One of these 
commenters also claimed that the definition of producer should be 
changed to allow on-line distributors to rely upon records provided to 
them by the immediately preceding secondary producer, in accordance 
with the Department's representation to the court in American Library 
Ass'n v. Reno. The Department declines to adopt these comments. The 
definition of producer is of necessity broad enough to encompass those 
who digitize images--even for distribution purposes--because in so 
doing, a new sexually explicit depiction is created. The Department has 
determined that it is not possible to change the definition in such a 
way as to exclude distributors while not also creating an unacceptable 
loophole in the coverage of the regulation. This

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definition does not alter the Department's representation to the court 
in American Library Ass'n v. Reno, and it remains true that a secondary 
producer not in privity with the primary producer may rely upon records 
provided to it by the immediately preceding secondary producer. 
However, on-line distributors who digitize depictions on the covers of 
videos, DVDs, magazines, and other material such that new depictions 
are created and displayed on the Internet are covered by the definition 
of producer and must maintain the required records.
    Three commenters commented that it is unclear whether the 
requirement that the statement include date of production, 
manufacturing, publication, duplication, reproduction, or re-issuance 
must include all of the listed events or only one. In addition, 
according to these commenters, the only relevant date for the statute's 
purposes is the date of creation, i.e., the date the actual live event 
was depicted. Finally, claimed these commenters, the term date of 
production is also vague in that it is not clear how a producer should 
date a film made over several days. The Department declines to adopt 
this comment. Given the statute's purpose of protecting minors against 
sexual exploitation, with respect to primary producers, clearly the 
date of production is the most pertinent because it will reflect the 
youngest age of the performer involved. Secondary producers should list 
whichever date or dates are relevant to their conduct. Moreover, this 
requirement already existed before the proposed rule was published, and 
therefore, this comment does not pertain to the proposed rule. See 28 
CFR 75.6(a)(2) (2003).